Citation Nr: 0216916
Decision Date: 11/22/02 Archive Date: 12/04/02
DOCKET NO. 00-20 760A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Evaluation of Raynaud's syndrome, currently evaluated as 10
percent disabling.
REPRESENTATION
Appellant represented by: Arizona Veterans Service
Commission
ATTORNEY FOR THE BOARD
M. Taylor, associate counsel
INTRODUCTION
The appellant served on active duty from March 1990 to April
1998.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a February 2000 rating decision of the
Phoenix, Arizona, Department of Veterans Affairs (VA)
Regional Office (RO).
FINDING OF FACT
The appellant's Raynaud's syndrome is manifested by
characteristic attacks occurring no more than four to six
times per week.
CONCLUSION OF LAW
The criteria for a rating of 20 percent for Raynaud's
syndrome have been met. 38 U.S.C.A. 1155 (West 1991 & Supp.
2001); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7117 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
On VA examination in November 1999, the appellant reported
that his hands were always cold. He stated that with any
gloveless exposure to the cold, under the right
circumstances, such as working as his part-time job as a
mechanic, the symptoms recurred. He indicated that the
symptoms especially involved the fingers turning white, to
include the index finger, which turned totally white, the
middle and ring fingers, with the distal half turning white,
and the thumb and little fingers, with the tips turning
white. He stated that he was able to warm them up, but
initially had some dotted erythema, with an onset of intense
pain. He reported that he continued to develop marked rubor
of the entire hands and fingers. He reported that the
duration depended upon the duration and intensity of the
cold. He estimated that the intense pain lasted no more
than 45 minutes. The report of examination notes his report
that he worked as a mail carrier and that the type of work
that he did, did not bother him. He stated that in the
winter time, he had to cut back on his work as a mechanic.
He reported that his feet bothered him, but much less so
than his hands and that he had no problems with his feet
during the summer. He stated that his feet were usually
fine indoors and that he did not have to wear socks to bed.
He denied symptoms of systemic illness, as well as any
arthralgias or myalgias or other suggestion of connective
tissue disease.
On examination, his cold hands and fingers were noted
immediately with the first handshake. There was palmar
rubor. The examiner stated that even though he was not
having an episode at the time of the examination, the hands
were very cold, especially the distal digits. There was no
skin rash. There were no nail deformities or any other sign
of any permanent injury or effects. Pulses were normal.
The feet and toes were warm. Pedal pulses were normal.
Toenails and skin of the feet were within normal limits.
There were no deformities. The impression was Raynaud's
phenomenon or disease.
The appellant underwent VA vascular examination in December
1999. The impression was that there was evidence for cold
immersion injury, worse in the hands and feet.
In an August 2000 notice of disagreement, the appellant
stated that he had attacks and three times per week in the
summer months and every day during the winter months. He
related that flare-ups occurred with pain and that the
affected areas turned completely white.
On VA examination in December 2000, he reported a history of
having had daily problems with his hands becoming numb and
cold and painful. He stated that it varied with degree of
activity. He stated that once his hand became cold, it was
difficult to warm them, and that during the warming period,
his hands were painful. He related that in very cold
weather, he had trouble almost daily, but that when the
temperature was greater than 50 degrees, he did much better.
He stated that during the past year he had had more trouble
than in the preceding year due to the fact that the winter
had been much more sever than the previous winter. He
related that his symptoms were about the same as they had
been one year earlier.
On examination, he was in no acute distress. The head and
neck were essentially negative. Blood pressure was 120/80.
The lungs were clear. The heart was not enlarged. The
extremities showed no clubbing and there were good femoral
pulses, bilaterally. The hands and feet were both cold and
quite pale, the hands more than the feet. The examiner
reported that there was a decreased pulse in the dorsalis
pedis, bilaterally. The femoral were of good volume. The
examiner could not palpate the posterior tibial on either
extremity. He stated that the hands were definitely cold
when compared to the upper portion of his arms.
The impression was Raynaud's phenomenon. The report of
examination notes that the appellant was somewhat limited in
very cold weather, but not totally incapacitated.
Private medical records, received in July 2002, show that he
complained that 1/2 of his right first toe had been numb for
months, in June 2001. Hand symptoms were noted to be fairly
mild, but worse in the winter months. The assessment was
Raynaud's syndrome by history. In February 2002, the
appellant complained of neck pain. The assessment included
Raynaud's syndrome.
Criteria
Disability evaluations are determined by comparing the
veteran's current symptomatology with the criteria set forth
in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (2002). A proper rating of
the veteran's disability contemplates its history, 38 C.F.R.
§ 4.1, and must be considered from the point of view of a
veteran working or seeking work. 38 C.F.R. § 4.2.
Under the revised criteria effective January 12, 1998, a 10
percent evaluation is provided for Raynaud's syndrome when
there are characteristic attacks occurring one to three
times a week. A 20 percent evaluation is provided when
characteristic attacks occur four to six times a week. A 40
percent evaluation is provided when there are characteristic
attacks occurring at least daily. A 60 percent evaluation
is provided when there are two or more digital ulcers and a
history of characteristic attacks. A 100 percent evaluation
is provided with two or more digital ulcers plus
autoamputation of one or more digits and history of
characteristic attacks. 38 C.F.R. § 4.104, Diagnostic Code
7117 (2002).
According to the note following these criteria, for purposes
of this section, characteristic attacks consist of
sequential color changes of the digits of one or more
extremities lasting minutes to hours, sometimes with pain
and paresthesias and precipitated by exposure to cold or by
emotional upsets. Further, the note dictates that these
evaluations are for the disease as a whole, regardless of
the number of extremities involved or whether the nose and
ears are involved. Id.
When all the evidence is assembled, VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either
event, or whether a preponderance of the evidence is against
a claim, in which case, the claim is denied. Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
Where there is a question as to which of two disability
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2002).
VCAA
There has been a significant change in the law during the
pendency of this appeal with the enactment of the Veterans
Claims Assistance Act of 2000, (codified at 38 U.S.C.A. §§
5102, 5103, 5103A, and 5107); 66 Fed. Reg. 45,620 (Aug 29,
2001) (to be codified as amended at 38 C. F. R. § 3.159
(2001) (hereafter "VCAA"). The new law includes an enhanced
duty to notify a claimant as to the information and evidence
necessary to substantiate a claim for VA benefits.
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the
date of enactment and not yet final as of that date. VCAA.
See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In
this case, even though the RO did not have the benefit of
the explicit provisions of the VCAA, VA's duties have been
fulfilled.
First, VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. VCAA,
(U.S.C.A. § 5102 and 5103); 66 Fed. Reg. 45,620 (Aug 29,
2001) (to be codified as amended at 38 C. F. R. § 3.159
(2001). The record shows that the appellant was notified in
the February 2000 rating decision of the reasons and bases
for the decisions. He was further notified of this
information in the October 2000 statement of the case and
the May 2002 supplemental statement of the case. The Board
concludes that the discussions in the February 200o rating
decision and in the statement and supplemental statement of
the case, which were all sent to the appellant, informed him
of the information and evidence needed to substantiate the
claim. In addition, by letter dated in March 2002, he was
advised of the evidence he needed to submit to substantiate
his claim, VA's duty to notify him about his claim, VA's
duty to assist in obtaining evidence for his claim, what the
evidence must show to substantiate his claim, what
information or evidence was needed from him, what he could
do to help with his claim, and what VA had done to help with
his claim. By letter dated in November 2002, he was advised
of the procedures by which to submit additional evidence.
These actions satisfied VA's notification requirements. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. VCAA,
(U.S.C.A.§ 5103A); 66 Fed. Reg. 45,620 (Aug 29, 2001) (to be
codified as amended at 38 C.F.R. § 3.159 (2001)). The
appellant has not identified any available unobtained
evidence that might aid his claim. The Board notes that the
appellant was afforded an opportunity to present evidence
and argument in support of his claim. In this case, the
Board finds that VA has done everything reasonably possible
to assist the appellant.
The Board notes that VA issued regulations to implement the
VCAA in August 2001, 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a),
3.159 and 3.326(a)). The amendments were effective November
9, 2000, except for the amendment to 38 C.F.R. § 3.156(b),
which is effective August 29, 2001. Except for the
amendment to 38 C.F.R. § 3.156(a), the second sentence of 38
C.F.R. § 3.159(c), and 38 C.F.R. § 3.159(c)(4)(iii), VA
stated that "the provisions of this rule merely implement
the VCAA and do not provide any rights other than those
provided in the VCAA." 66 Fed. Reg. 45,629. Accordingly,
in general where the record demonstrates that the statutory
mandates have been satisfied, the regulatory provisions
likewise are satisfied.
Analysis
Initially, the Board notes that the appellant is appealing
the original assignment of a disability evaluation following
an award of service connection. In such cases, the entire
period is to be considered to ensure that consideration is
given to the possibility of staged ratings; that is,
separate ratings for separate periods of time based on the
facts found. See Fenderson v. West, 12 Vet. App. 119, 126
(1999). Accordingly, the issue is whether a rating in
excess of 10 percent is warranted for Raynaud's syndrome at
any time during the appeal period. We conclude that the
disorder has not significantly changed and that a uniform
rating is warranted.
The veteran contends that Raynaud's syndrome is exacerbated
by cold weather. He asserts that during the winter months
he has daily attacks.
On VA examination in November 1999, the examiner immediately
noticed the appellant's very cold hands and fingers with the
first handshake. Similarly, the December 2000 VA examiner
reported that the hands were definitely cold. The Board
finds that this evidence, coupled with the appellant's
subjective statements, establishes that the disability
picture more closely approximates the disability criteria
for a 20 percent evaluation. Consequently, a 20 percent
evaluation for Raynaud's syndrome is warranted. 38 C.F.R.
§ 4.7.
The preponderance of the evidence is against an evaluation
in excess of 20 percent for Raynaud's syndrome. The
evidence does not show that the appellant has daily attacks.
The appellant is competent to report that his symptoms are
worse. However, the training and experience of the medical
personnel makes their findings more probative as to the
extent of the disability. Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992) (holding that a witness must be
competent in order for his statements or testimony to be
probative as to the facts under consideration). The
November 1999 specifically stated that he was not having an
episode on the day of the examination. Further, there was
every indication from the veteran that the attacks varied
based on the weather, temperature and activity. The Board
accepts that during the winter and cold months the frequency
is higher. However, overall during a 12 month period the
frequency is six times per week or less.
The Board has considered all potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
have been raised by the appellant or his representative, as
required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991).
In this case, the Board finds no other provision upon which
to assign a higher rating.
In addition, the Board does not find that consideration of
an extraschedular rating under the provisions of 38 C.F.R. §
3.321(b)(1) (2002) is in order. The evidence failed to show
that the appellant's Raynaud's syndrome has in the past
caused marked interference with his employment, or that such
has in the past or now requires frequent periods of
hospitalization rendering impractical the use of the regular
schedular standards. Id. The evidence shows that the
veteran is employed as a mail carrier. The Board notes that
the appellant has stated that he must reduce his work hours
in relation to his part-time employment as a mechanic during
the winter months in Arizona. However, the Board finds that
such does not rise to the level of marked interference.
ORDER
A 20 percent evaluation for Raynaud's syndrome is granted,
subject to the controlling regulations applicable to the
payment of monetary benefits.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.